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Oprisko v. Director of Department of Corrections

Supreme Court of Virginia

February 9, 2017

DANIEL PAUL OPRISKO
v.
DIRECTOR OF THE DEPARTMENT OF CORRECTIONS

         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS C. Peter Tench, Judge.

         PRESENT: All the Justices.

          OPINION

          S. BERNARD GOODWYN JUSTICE.

         In this appeal, we consider whether the habeas court erred in determining that the rule announced by the Supreme Court of the United States in Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409 (2013)-that use of a drug-sniffing dog on a homeowner's porch constitutes a search within the meaning of the Fourth Amendment of the United States Constitution-does not apply retroactively to a conviction finalized prior to Jardines. We also consider whether the habeas court abused its discretion by denying a plenary hearing.

         Background

         On July 9, 2007, a grand jury for the City of Newport News indicted Daniel Paul Oprisko (Oprisko) for the felony of possessing, with intent to distribute, more than one-half ounce but less than five pounds of marijuana, in violation of Code § 18.2-248.1. Oprisko moved to suppress the fruits of the search that led to his arrest on the ground that the probable cause for the search was provided by the warrantless use of a drug-sniffing dog in violation of the Fourth Amendment of the United States Constitution.

         The Circuit Court of the City of Newport News held a suppression hearing at which two detectives testified that, in the course of investigating an illegal drug complaint at Oprisko's address, they approached the house with their drug dog, Sam, to conduct a "knock and talk." Oprisko introduced photographic and testimonial evidence that "No Trespassing" signs were posted on his property, but the detectives stated that they did not see such signs. The detectives testified that when they were approximately 20 feet from Oprisko's house, Sam alerted to the presence of drugs in the house by pulling his handler toward the house, onto the porch, and scratching the door. Subsequently, the detectives obtained a search warrant for Oprisko's home and seized 51 marijuana plants from the attic. Neither the search warrant nor the supporting affidavit was introduced into evidence.

         Oprisko argued that the detectives conducted an unlawful search by exceeding the scope of implied consent in entering onto the curtilage of his property and using Sam to conduct a drug-detection sniff on the porch. He contended that use of a drug-sniffing dog is a search, and that a search warrant cannot be obtained solely on the basis of an illegal search. The court denied the motion to suppress, finding that the detectives acted within the scope of implied consent in approaching the home with Sam to conduct a "knock and talk, " and that the "No Trespassing" signs were too faded to negate that implied consent.

         On January 9, 2009, the circuit court found Oprisko guilty of felony possession with intent to distribute in violation of Code § 18.2-248.1 and, on February 5, it imposed a sentence of five years' imprisonment with five years suspended, conditioned upon a five-year period of good behavior, one year of supervised probation and a six-month suspension of Oprisko's driver's license.

         Oprisko appealed to the Court of Appeals of Virginia, arguing that the circuit court erred in denying his motion to suppress and in finding the evidence sufficient to convict him of possession with intent to distribute, rather than mere possession. On September 14, 2011, the Court of Appeals refused to consider the denial of the suppression motion, ruling that Oprisko "failed to provide an adequate record for determination of the issue" because he had not provided the search warrant or supporting affidavit in the record. It found the evidence sufficient to support a conviction for possession with intent to distribute. On appeal to this Court, Oprisko challenged only the sufficiency of the evidence, and we refused the petition on May 25, 2012. His conviction became final 90 days later, on August 23, 2012.[1]

         Meanwhile, on January 6, 2012, the Supreme Court of the United States had granted certiorari in Florida v. Jardines, 569 U.S. 1, ___, 133 S.Ct. 1409, 1413 (2013), addressing "whether using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a 'search' within the meaning of the Fourth Amendment." On March 26, 2013, the Court held that "[t]he government's use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment." Id. at, 133 S.Ct. at 1417-18.

         On May 23, 2013, Oprisko filed a petition for a writ of habeas corpus in the circuit court, alleging that Jardines is "retroactively applicable to cases on collateral review, " and that Jardines confirmed that the search of his home was invalid. He contended that Jardines was retroactive because it did not announce a "new" rule, but rather followed the earlier case of United States v. Jones, 565 U.S. 400, 409(2012), in that the Supreme Court's decision in Jardines "hinged on the basis of a citizen's property rights." Oprisko also requested a "plenary hearing" to allow him to "present testimony and exhibits in support of his habeas corpus petition." The Director of the Department of Corrections moved to dismiss, arguing primarily that Jardines did not apply retroactively because it announced a new constitutional rule.[2]

         After a phone conference with the parties, on July 1, 2015 the habeas court dismissed Oprisko's petition, holding that "it need not determine whether Florida v. Jardines would alter its suppression ruling in the instant case because Jardines introduced a new rule and is not retroactive." It also held that a plenary hearing was unnecessary because the claim could be decided on the record.

         Oprisko appealed. This Court granted Oprisko an appeal on the issues of whether the habeas court erred in ruling that Jardines did not apply retroactively and in denying his request for a plenary hearing.

         Analysis

         A. Retroactivity of Fl ...


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